The Ombudsman's final decision:
Summary: Mr B complained about the Authority’s decision not to prosecute anyone in connection with a fire that destroyed the block of flats where he lived. He considered the Authority had not provided a clear explanation of how it reached the decision and the basis for it. He considered the failure to take such action meant that he, and the other affected residents, felt the trauma they went through had not been taken seriously. And the wider public interest of holding the relevant bodies to account had not been served. There was no fault by the Authority.
- I refer to the complainant as Mr B. He complained about the Authority’s decision not to prosecute anyone in connection with a fire that destroyed the block of flats where he lived. He considered the Authority had not provided a clear explanation of how it reached the decision and the basis for it. He considered the failure to take such action meant that he, and the other affected residents, felt the trauma they went through had not been taken seriously. And the wider public interest of holding the relevant bodies to account had not been served.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with the Authority’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I considered the complaint and documents provided by Mr B and spoke to him. I asked the Authority to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Authority and considered their comments.
What I found
Summary of the relevant law and guidance
- A fire and rescue authority can prosecute someone if they consider they are guilty of an offence under the Regulatory Reform (Fire Safety) Order 2005 (Fire Safety Order).
- The Authority says that in deciding whether to prosecute it follows the principals laid down in The Code for Crown Prosecutors. The first stage is the evidential test. This requires the prosecutor to satisfy themselves that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. A case which does not pass the evidential stage must not proceed. If the case passes the evidential stage, the second stage is the public interest test. When deciding the public interest, prosecutors should consider a number of questions so as to identify and determine the relevant public interest factors for and against prosecution.
- When a building is constructed it should comply with the building regulations. Inspections of the construction works are either done by the local authority building control department or by an independent building control body, known as an Approved Inspector. In this case the inspections were by an Approved Inspector and a completion certificate issued. A certificate does not guarantee that the works comply with the building regulations.
- Once a building is built and occupied, the requirements for fire safety standards for most buildings falls under the Fire Safety Order. The main exception to this is single private dwellings. In this case, the Fire Safety Order applied to the areas outside the individual flats, the staircases, roof space and other common areas.
- The Fire Safety Order places responsibility for self-compliance on a defined role of the ‘responsible person’, In this case the person, or persons, in control of the premises will be responsible. That is the owner of the blocks.
- For a contravention of the Fire Safety Order to have taken place the responsible person must have failed to undertake one or more of the defined fire safety duties.
- Mr B lived in a flat in a block of similar properties owned by a housing association (the Association). There was a fire which caused significant damage and led to all the occupants having to leave permanently and many losing all their possessions. The Association owned a similar neighbouring block. That block was evacuated at the time of the fire and the occupiers never returned. The Association later decided to demolish that block too.
- The fire service attended the fire. The next morning officers attended to carry out a fire investigation the purpose of which is to investigate the cause of the fire and the reasons for the spread. And to carry out a fire safety inspection which is to assess the compliance of the building with the Fire Safety Order.
- As part of the fire safety inspection the fire officer inspected the roof void of the sister block. He was accompanied by two local authority building control officers who were on site overseeing the partial demolition of the fire damaged block. They found significant construction defects in the roof which meant it was unsafe for the residents to move back in.
- The fire investigation report was completed a month after the fire. The outcome was that the cause of the fire was accidental. There was inadequate fire stopping in the roof void which contributed to the rapid and extensive fire spread in the roof void.
- The fire service met with the local authority two months after the fire to discuss who should take the lead in investigating possible regulatory failures in the buildings. There was a further meeting and the Authority decided it should undertake a formal regulatory investigation under the Fire Safety Order.
- It asked the Association to provide information. From the information provided the Authority was satisfied that the Association had undertaken the duties required of it by the Fire Safety Order to a satisfactory standard. It had employed competent persons to assist them where necessary (such as in undertaking the fire risk assessments) to achieve the required outcomes.
- The Authority then went on to consider whether anyone else could be deemed to have had an element of control once the building was occupied relating to the deficiencies found. It considered the fire risk assessment the Association had arranged to be carried out. There are different types of assessment. The one done here was a type 1. The Authority considered that was appropriate. That was because the buildings had been in the same ownership of the responsible person since they were built 11 years previously. They had been well maintained since they had been signed off by the Approved Inspector on the completion of the construction. No fire safety deficiencies had been identified by the enforcing authority in the lifetime of the building and there was no reason to suspect that a more invasive assessment was required.
- The Authority then took legal advice from a barrister with experience in fire safety law to see whether there were any other options either for the Authority or partner agencies.
- The Authority contacted the Approved Inspector and the relevant registration body. But there was no basis on which it could take formal action as it was not covered by the Fire Safety Order.
- There was also contact between the Authority and various bodies involved nationally in fire safety to share the learning from this event.
- The Authority commented that during the course of the investigations it became apparent that there were still areas where current legislation fails to hold people to account for fire safety failings. It said that changes to legislation are being considered by the Government.
- The information the Authority has provided in response to our enquiries is more detailed than it had shared with Mr B or the other residents. Information that could be shared would be limited while the investigation was still continuing. It would not be possible to share information that could jeopardise possible legal action.
- I am satisfied from the information I have seen that there was no fault in the Authority’s investigation and decision that it could not take formal action. Its powers derive from the Fire Safety Order and it can only act within those terms. It explored all possible avenues and took appropriate advice. The Authority is clear there were defects with the construction of the building and it has explained why it could not take action in respect of those defects.
- There was no fault by the Authority.
Investigator's decision on behalf of the Ombudsman